U.S. Supreme Court clears way for Arizona execution

by Michael Kiefer - Oct. 26, 2010 07:28 PMThe Arizona Republic

After a day full of delays, a U.S. Supreme Court cleared the way for a convicted killer to be put to death Tuesday night with a decision to lift a stay temporarily barring Arizona executing Jeffrey Landrigan.

The high court's ruling came hours after a federal appeals court on Tuesday afternoon denied Arizona's request to file sealed information revealing the origin of drug intended to be used in the execution of convicted killer Landrigan.

Attorneys for the state had resisted the demand to reveal the manufacturer of sodium thiopental, citing an Arizona statute that requires the need for confidentiality in matters related to executions.

The court's ruling was the latest development in the state's efforts to put Landrigan to death, a process that was supposed to occur at the state prison in Florence at 10 a.m. Tuesday.

Department of Corrections personnel were waiting to initiate the execution process Tuesday evening in anticipation of the Supreme Court down a decision within the 24-hour window established by Landrigan's death warrant.

Despite activities by his defense team to prolong his life, Landrigan spent Monday night and Tuesday in the "Death House" at the Arizona State Prison Complex in Florence, where authorities prepared for his execution as the condemned man had a last meal of well-done steak, fried okra, French fries, ice cream and a Dr. Pepper.

He had been scheduled to die at 10 a.m. Tuesday, but won a last minute stay before 2 a.m. Tuesday when the 9th U.S. Circuit Court of Appeals upheld a restraining order issued Monday by a Phoenix judge. A larger panel of appellate judges was expected to consider the matter later Tuesday.

Landrigan has been on Death Row for 20 years for the 1989 murder of Chester Dean Dyer in Phoenix.

His execution initially was put on hold in a harshly-worded federal ruling suggesting the state was being "obstructive" in declining to disclose where it had obtained one of the drugs to be used in Landrigan's lethal injection.

In her Monday order, U.S. District Judge Roslyn O. Silver told the Arizona Department of Corrections and the state Attorney General's Office to turn over information about where it had acquired its sodium thiopental, a barbiturate that renders the condemned person unconscious so that he or she cannot feel suffocation or pain induced by the second and third drugs administered during execution.

A nationwide shortage of thiopental has raised questions about where Arizona obtained the drug. If it obtained a version not approved by the U.S. Food and Drug Administration, defense attorneys fear it will not be effective and could constitute cruel and unusual punishment, which is banned by the Eighth Amendment.

The state so far has refused to disclose detailed information about its thiopental, citing a statute concealing the identity of executioners and all people with "ancillary" functions needed to carry out an execution.

Should Landrigan's stay be upheld by the appellate panel, Arizona Attorney General Terry Goddard has promised to take the matter before the U.S. Supreme Court, arguing that disclosure is not permitted and that the execution should go ahead as planned.

If the execution does not take place within 24 hours of Tuesday's scheduled time, the state will have to return to the Arizona Supreme Court for a new death warrant, a process that could take months.

The Corrections Department on Monday asked witnesses to the execution to show up as if it was going forward this morning, and Landrigan's attorneys were told they could visit him before dawn, again assuming the execution would take place. Witnesses remained at the prison at midday Tuesday awaiting word as to whether the execution would proceed. The national shortage of thiopental first became apparent in May when Ohio had to scramble to find enough to carry out an execution there. Executions in other states have been postponed because of its unavailability.

Since the scheduling of Landrigan's execution in late September, his attorneys have questioned where the state would obtain the drug. The state obtained the drug Sept. 30 but has refused to say how or where, referring to the state law protecting the information.

Still, information has leaked out.

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Last week, during an Arizona Supreme Court hearing, Assistant Attorney General Kent Cattani told justices that the drug did not come from the only source approved by the U.S. Food and Drug Administration, a pharmaceutical firm near Chicago.

Landrigan's attorneys deduced that it came from overseas and consequently might not meet the quality-control standards assured by FDA approval.

If the drug were substandard, the attorneys argue, it could cause the condemned pain or suffering, or fail to alleviate pain and suffering caused by the other lethal drugs.

Cattani later told the court the drug had a 2014 expiration date, the same as a supply obtained by California on the same day Arizona obtained the drug.

Goddard confirmed to The Arizona Republic on Monday that the drug was imported from Great Britain. In September, when the Arizona Supreme Court scheduled Landrigan's execution, the justices ordered the state to inform them by Oct. 1 if it had obtained the drugs.

Landrigan's lawyers have persistently demanded since then to know where the drugs came from. Cattani has repeatedly refused to say.

Last week, the state Supreme Court refused to compel the Corrections Department to reveal its sources.
Landrigan's attorneys then took it to federal court in Phoenix. On Saturday, Silver asked the state to voluntarily reveal information about its thiopental.

Cattani, however, would allow the judge access to that information only if it were kept under seal. Silver refused, instead issuing Monday's order to halt the execution and taking Cattani to task. "The court is perplexed by defendant's behavior in this case," she wrote. "Based on this court's experience, defendant's actions are highly unusual."

She went on to say that she had never seen an instance in which a party in a case claimed to have evidence that he would not share to prove that claims against him were false.

Silver wrote that the state has "now created a situation where a seemingly simple claim that could have been resolved well in advance of the execution must be resolved in five days - and now only eighteen hours due to further protractions created only by (the state) - without the benefit of (Landrigan) having the opportunity to present fact-based arguments," Silver wrote.

The state clemency board also recommended on Friday that Gov. Jan Brewer issue Landrigan a reprieve, but Brewer refused.